Thornton v. Victor Meat Co.

Decision Date27 March 1968
Docket NumberAFL-CIO,No. 120,120
Citation260 Cal.App.2d 452,67 Cal.Rptr. 887
CourtCalifornia Court of Appeals Court of Appeals
PartiesS. E. THORNTON, Individually, and on behalf of Butchers' Union, Local, of the Amalgamated Meat Cutters and Butcher Workmen of North America,, and on behalf of those of its members similarly situated, Lea Andrade et al., Plaintiffs and Appellants, v. VICTOR MEAT COMPANY, Victor Meat Company doing business as Miller Packing Company, Pringle Meats, Inc., Steinbeck & Theiss Meat Company, Inc., Oakland Meat Co., Tesio Meat Co., John Morrell & Co., Provision Meat Company, C & M Wholesale Meat Co., F & M Packing Co., Inc., Regal Packing Co., Defendants and Respondents. Civ. 24282.

Charles P. Scully, Donald C. Carroll, John B. Salazar, San Francisco, for appellants.

Angell, Adams & Holmes, Andrew H. Field, San Francisco, for respondents.

SIMS, Associate Justice.

Plaintiffs, who consist of Butchers Union, Local No. 120, its secretary-treasurer, and several members of the union, sought to recover, for all members similarly situated, wages allegedly due from the defendant meat processors under the provisions of a collective bargaining agreement which guaranteed the regular employees a five day, forty hour work week. The defendants, members of the Pacific Coast Meat Jobbers Association, 1 attacked the complaint by demurrer, and motion for summary judgment. 2 Plaintiffs have appealed from an adverse judgment entered following the granting of defendants' motion.

The background of the controversy can be ascertained from the complaint. Plaintiffs allege that on October 1, 1961, certain associations representing defendants, and defendants entered into a collective bargaining agreement with the union covering wages, hours and conditions of employment. 3 This agreement provided: 'Regular employees shall be guaranteed five (5) days, forty (40) hours of work, unless they are advised before quitting time on Friday that they are being hired or brought to work for the following week on a predetermined short work week of less than five (5) days and less than forty (40) hours, or unless such work ceases to be unavailable by reasons of an Act of God, or other reason beyond the control of the Employer. Whenever an employee is scheduled to work a short work week as set forth above, he shall receive ten percent (10%) in addition to his regular daily rate for all work performed during that scheduled short work week, even though such an employee may work forty (40) hours or more during that week.' They allege that negotiations for a new contract had been in progress since July of 1964; that the old contract was to expire on Thursday, October 1, 1964; that the contract was extended until the negotiating session of Monday, October 5, 1964; that at that meeting a spokesman for the employers read a letter which stated that since the union would only agree to extensions of the agreement on a 'day to day' basis, and not on a 72-hour basis, and since this was unacceptable to the defendants because of the nature of the meat business, the contract would expire that day, 4 that he stated all the plants would be closed down the next day; that contrary to the facts as stated by the spokesman, and the letter, the defendants had met on Saturday, October 3, 1964, and voted to lock out employees on Tuesday, October 6, 1964; that the defendants were advised by a memorandum dated October 3, 1964 on how to proceed with said lockout; 5 and that 'in the week of October 5, 1964, and more particularly from Tuesday, October 6, 1964, the defendants, * * * defaulted in the performance of the * * * agreement by refusing to provide and failing to provide five days, 40 hours of work and by refusing to pay' pursuant to this agreement. Plaintiffs set forth $21,899.70 as the total wages due, and prayed for this sum, as well as interest.

In response to points made below by defendants in support of their motion, plaintiffs now contend (1) that the affidavit filed in support of the motion for summary judgment is insufficient to support the court's order granting the motion and the ensuing judgment; (2) that the record reveals that there were issues of fact to be tried; (3) that the state court has jurisdiction over the action and is not preempted by the jurisdiction conferred on the National Labor Relations Board or by earlier proceedings taken before that tribunal; (4) that there is no requirement that plaintiffs resort to grievance procedures or arbitration before resort to court action; (5) that the allegations of the complaint, as admitted, do not show that the contract provisions expired prior to, and that they were not applicable to, the alleged breach; and (6) that the admitted facts do not show that defendants were excused from performance because the employees refused to commit themselves to work the full week.

I. Sufficiency of the Affidavit in Support of the Motion

The court has been referred to a plethora of cases defining the nature and purpose of the summary judgment procedure set forth in section 437c of the Code of Civil Procedure, and the principles governing the determination of the sufficiency of the affidavits presented by that section. 6 The terse statement in R.D. Reeder Lathing Co. v. Allen (1967) 66 Cal.2d 373, 57 Cal.Rptr. 841, 425 P.2d 785, will suffice: 'In considering a motion for summary judgment the trial court must determine whether the (opponent) has by affidavit presented any facts that give rise to a triable issue. (Citations.) The court does not resolve conflicting factual allegations for the purpose of the procedure is to discover whether the parties have evidence requiring assessment at a trial. Such summary procedure is drastic and should be used with caution so that it does not become a substitute for trial. (Citations.) Accordingly, the affidavits of the moving party are strictly construed and those of his opponent, even if in conclusionary terms, are liberally construed. Summary judgment is proper only if the affidavits in support of the moving party are sufficient to sustain a judgment in his favor and his opponent does not by affidavit show facts sufficient to present a triable issue.' (66 Cal.2d 373, 376--377, 57 Cal.Rptr. 841, 843, 425 P.2d 785, 787.)

The affidavit of defendants' attorney accompanied their motion. He stated that he was the attorney for the Pacific Coast Meat Jobbers Association, which held a power of attorney for collective bargaining with the union, from defendants, its members; that the association had received a letter from the regional director of the National Labor Relations Board on October 8, 1964, containing a copy of 'Charges Against Employer,' signed by counsel for plaintiffs; that the charge against defendants was that on 'October 6, 1964, while negotiations were pending with representatives of (Butchers' Union Local No. 120) the charging party, (the defendants) unlawfully and improperly locked out the employees of certain of its members in violation of National Labor Relations Act sections 8(a)(1) and 8(a)(3) (29 U.S.C.A., § 158, subds. (a)(1) and (a)(3)). That in violation of Section 8(a)(3) said Employer did not transmit in a timely fashion the notices required under Section 8(d) (id., subsection (d))'; that an investigation was conducted by the National Labor Relations Board to determine whether it should issue a complaint against defendants for unfair labor practices; that by letter of March 9, 1965, the regional director notified counsel for plaintiffs that further proceedings were not warranted; that plaintiffs requested review of this decision; that on May 12, 1965, the general counsel of the National Labor Relations Board denied plaintiffs' appeal by letter which recited, '(U)nder all the circumstances, including the fact that the membership of each of the Locals involved had voted to authorize strike action, the Union's failure to alleviate the Association's fear of a strike by agreeing to more than a day-to-day extension of the contract, and the perishable nature of the products involved, the burden of establishing that the lockout of Ocotober 6, 1964, was unlawful could not be sustained.' Copies of the charges and the letters of the regional director and the general counsel are appended to the affidavit. The attorney further alleged that plaintiffs had not requested that their demands for payment be subject to the grievance arbitration machinery pursuant to the collective bargaining agreement.

The statute requires: 'The affidavit or affidavits in support of the motion must contain facts sufficient to entitle plaintiff or defendant to a judgment in the action, and the facts stated therein shall be within the personal knowledge of the affiant, and shall be set forth with particularity, and each affidavit shall show affirmatively that affiant, if sworn as a witness, can testify competently thereto.' (Code Civ.Proc. § 437c, 2d par.; and see Hayward Union High School Dist. of Alameda County v. Madrid (1964) 234 Cal.App.2d 100, 115, 44 Cal.Rptr. 268; Johnson v. Drew (1963) 218 Cal.App.2d 614, 616, 32 Cal.Rptr. 540; Johnson v. Banducci (1963) 212 Cal.App.2d 254, 261, 27 Cal.Rptr. 764; Weir v. Snow (1962) 210 Cal.App.2d 283, 290, 26 Cal.Rptr. 868; Callahan v. Chatsworth Park, Inc. (1962) 204 Cal.App.2d 597, 604, 22 Cal.Rptr. 606; Snider v. Snider (1962) 200 Cal.App.2d 741, 748, 19 Cal.Rptr. 709; and Rodes v. Shannon (1961) 194 Cal.App.2d 743, 748, 15 Cal.Rptr. 349.)

There is no requirement, however, that the statutory language be included in the affidavit. In Schessler v. Keck (1956) 138 Cal.App.2d 663, 292 P.2d 314, the court disposed of a similar contention, as follows: 'Appellant also argues that the moving affidavits are insufficient because they do not assert in the terms of the statute 'that the affiant, if sworn as a witness, can testify competently thereto.' It appears that ...

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